SEXUAL HARASSMENT – A DOMINANT PUBLIC POLICY

In the summer 2012 edition of Education News, we reported that MB&M had successfully appealed an Arbitrator’s award in which a teacher was reinstated to his position despite a finding that the teacher engaged in multiple acts of inappropriate touching of his students. The Commonwealth Court reversed the Arbitrator’s award and upheld the teacher’s termination based, in part, on the well-defined and dominant public policy against sexual harassment. Although that decision is now on appeal by the Union, on the eve of filing the appeal, the Pennsylvania Supreme Court issued its decision in the Philadelphia Housing Authority v. AFSCME case in which the Supreme Court affirmed aCommonwealth Court decision vacating an arbitration award which reinstated an employee who had been terminated for sexual harassment of a co-worker. The Supreme Court held that an Arbitration award which reinstated an employee who was discharged for acts of sexual harassment violated the well-defined and dominant public policy against sexual harassment in the work place. The public policy against sexual harassment, according to the Supreme Court, is grounded in both federal and state law.

The Philadelphia Housing Authority case is important because it lends definite support to the existence of a similarly well-defined and dominant public policy against sexual harassment in the educational arena, especially as it relates to sexual harassment by teachers against students. Several Supreme Court findings in the Philadelphia Housing Authority case should encourage school districts and public employers generally that they have the ability to investigate and administer appropriate discipline in order to comply with federal and state laws that prohibit sexual harassment. In Philadelphia Housing, the Supreme Court determined that the absurd award of reinstatement made a mockery of the dominant public policy against sexual harassment by rendering public employers powerless to take appropriate actions to vindicate a strong public policy. In fact, the Supreme Court noted that the irrational award of reinstatement undermined clear and dominant public policy. The Supreme Court sent a strong message that public employers cannot be denied the power to impose consequences for inappropriate and facially criminal conduct and that public employers must have the power to take meaningful steps to vindicate dominant public policy.

AFSCME raised the argument in Philadelphia Housing that even though there was a dominant well-defined public policy against sexual harassment, it did not automatically require termination for all acts of sexual harassment. The Supreme Court agreed that termination was not required in all circumstances. However, the Supreme Court also rejected the argument that a public employer could be precluded from taking decisive action against an employee following its investigation into the claims of sexual harassment. The Court recognized that “a public employer should be empowered to implement a zero tolerance policy when appalling, assaultive, repeated sexual harassment is at issue.” Clearly, each case must be reviewed based upon the facts and specifics of that case. However, when the facts establish that repeated, ongoing and egregious acts of sexual harassment, especially if perpetrated by teachers or others in a position of authority over school-aged children has occurred, Philadelphia Housing empowers school districts to take decisive action in protecting the students by terminating the offending employee. If the termination is grieved and proceeds to arbitration, the school district should remind the Arbitrator that if he finds that sexual harassment occurred, any discipline modification by the Arbitrator would violate the dominant well-established public policy against sexual harassment as determined by the Pennsylvania Supreme Court in the Philadelphia Housing case.